ILLINOIS LAW REVIEW Published monthly except July to October, inclusive, by Nathan William MacChesney, President. $3 PER YEAR Frederic B. Crossley, Secretary and Treasurer Subscribers who wish to discontinue their subscriptions at the end of the subscription period should notify the business office of the REVIEW; otherwise it will be assumed that a continuation of the subscription is desired. Ex-Officio, R. Allan Stephens, Secretary, Illinois State Bar Association To promote free expression of view on the part of contributors, the Editorial Board, collectively, assumes no responsibility for any statement in the columns of the REVIEW. Each article or communication, including editorial notes, comments on cases, and book reviews, is identified by the name or the initials of the writer. CONTRIBUTORS EARL C. ARNOLD, LL.B., Northwestern University, is COMMENT ON RECENT CASES CRIMINAL PROCEDURE-PROOF OF MAJOR CRIME ON CHARGE OF MINOR AND VICE VERSA.-Three aspects of allegation and proof in connection with major and minor crimes growing out of the same transaction have recently had the attention of the Supreme Court. People v. Lardner 300 I11. 264, 133 N. E. 375, holds that on a charge of attempt to commit larceny there can be no conviction where the evidence shows the completed crime; People v. Mason 301 Ill. 370, 133 N. E. 767, that on a charge of assault with intent to commit rape there may be a conviction, notwithstanding proof that the rape was actually committed, and People v. Crane 302 Ill. 217, 134 N. E. 99, that on a charge of taking indecent liberties with a child there can be no conviction for an attempt to commit this crime. As to the first two of these holdings, the court, in making the distinction thus implied, is simply recognizing the essential difference which exists between the legal conceptions of attempt to commit an offense and assault with intent to commit it, in their relation to the completed crime. An attempt, as known to the criminal law, is in no sense a constituent element of the crime itself, for there can be no punishable attempt without a failure to accomplish the object intended. Such was the view adopted in Graham v. People 181 Ill. 477, which held that an indictment for attempt to obtain money by means of the confidence game is not supported by proof that the defendant actually obtained the money. Since the allegation of non-success, under the ordinary rules of criminal pleading, is essential to an indictment for attempt (People v. Purcell 269 Ill. 467), it is plain that the charge of attempt is not included within the allegations stating the consummated offense. In other words, it is not enough to constitute a criminal attempt that there shall be a certain degree of progression along the 'iter criminis': it must appear, in addition, that the progression has come to a full stop. Quite otherwise is the case of assault with intent to commit a crime. In offenses involving force, such as rape, the assault with intent is per se an element of the completed crime. The allegation of the completed crime, therefore, includes the charge of assault. In this case, it suffices to show a certain degree of progression along the 'iter criminis,' viz., to the extent of the assault, accompanied by the intent in question, without regard to success or failure of the criminal purpose: the conception of assault with intent is complete irrespective of the carrying out of the intent. In England the principles here involved were formerly prevented from having free play by the artificial doctrine of merger, which forbade conviction of a misdemeanor where the offense charged or proved was of felony. This is why Buller J. directed an acquittal in Harmwood's Case 1 East P. C. 411, where on a charge of assault with intent to commit a rape,-such attempt being a common law misdemeanor,-the prosecution proved a rape actually committed. It also serves to explain the similar direction of Rolfe B. in Queen v. Nicholls 2 Cox C. C. 182,-an explanation, we may parenthetically observe, quite overlooked by the court in Graham v. People, supra, which in citing the Nicholls case, makes the further mistake of supposing that a ruling as to assault, in the present regard, has any bearing upon the question of attempt. Had assault with intent to commit rape been a felony in England at the time of these cases, it is clear that the opposite result would have been reached. And after the enactment in 1851 of 14 & 15 Vict. c. 100, s. 12, which provided that "if upon the trial of any person for any misdemeanor it shall appear that the facts given in evidence amount in law to a felony, such person shall not by reason thereof be entitled to be acquitted of such misdemeanor," the rule naturally changed. By virtue of that enactment, evidence of the completed crime will not now defeat a conviction of assault with intent to commit rape. Roscoe's Crim. Ev. 13 ed. 731. Under the dominance of the rule as to merger, no necessity existed for considering the difference, above noted, between attempt and assault with intent. For, even if attempt had been treated as included with the allegations of the completed crime, and thus as a lesser included offense, the rule in question, as long as the attempt was a misdemeanor, would have prevented conviction in the face of evidence of the completed crime. To some extent the doctrine of merger still embarrasses the general subject in the United States (see Kerr's Wharton's Crim. Law, § 840), but, for the most part, its influence has wholly ceased. Concerning attempt alleged and consummation proved, however, little is to be gleaned from American cases, outside of Illinois. Sullivan v. People, 27 Hun. 35, where the charge was burglary in the first degree, the evidence that of burglary in the second degree, and the conviction for an attempt to commit burglary in the first degree, reaches a conclusion which accords with the view of the Illinois court. The prisoner, said the court, "could not be convicted of an attempt, because the statute declares that no person shall be convicted of an attempt to commit any offense unless it shall appear that the crime intended or the offense attempted was not perpetrated by him." To the opposite effect is Lewis v. State, 30 Ala. 54. The indictment there charged that the accused "did forcibly ravish or attempt forcibly to ravish" one L. B. In approving the refusal of the trial judge to give an instruction to the effect that, if the rape had been committed, there could be no conviction for attempt, the court said that the instruction requested "loses to sight the fact that, in every actual rape, there is necessarily involved an attempt to commit the crime." As to the case, on the other hand, of assault with intent, in the present connection, the situation is quite different. Here the cases are numerous and, in the absence of statutory interference, generally support the view that conviction of an assault to commit a crime, involving force may be had upon evidence of the accomplished crime, whether the charge is of the assault alone (State v. Shepard 7 Conn. 54; State v. Smith, 43 Vt. 324; State v. Archer 54 N. H. 465; Comm. v. Creadon 162 Mass. 466; Polson v. People 137 Ind. 519) or of the crime itself (People v. Miller 96 Mich. 119; People v. Chavez 103 Cal. 407; Dawson v. State 96 Neb. 777; Pratt v. State 51 Ark. 167). Sundry decisions to the contrary are to be accounted for by the statute obtaining in Missouri (State v. White 35 Mo. 500; State v. Lacey 111 Mo. 513), Kansas (State v. Mitchell 54 Kan. 516) and Georgia (Kelsey v. State 62 Ga. 558; Wellborn v. State 116 Ga, 522), as well as in Mississippi (Code, 1906, § 1050) and perhaps elsewhere, which provides that "no person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit an offense, when it shall appear that the crime intended, or the offense attempted, was actually perpetrated by such person at the time of such assault, or in pursuance of such attempt." The rule laid down in People v. Crane, supra, that on an indictment for the completed crime, there can be no conviction for attempt naturally follows from the same considerations which dictate the holding in the Lardner case. To be sure, it disagrees with what was said, arguendo, in Reynolds v. People 83 Ill. 479, namely, that "where the crime charged is rape, the conviction may be for attempt to commit rape." That observation, however, was plainly inadvertent, since this very case expressly declares that "the principle is, the graver offense necessarily includes the lesser, and proof of the higher crime can not be made without proof of all that which it includes. But this rule always implies the lesser offense is included in the higher crime with which the accused is specifically charged, and if it is not a constituent element in the higher crime charged, no conviction can be had." Inasmuch as non-success is an element of a punishable attempt, as pointed out above, attempt, in this sense, cannot be a constituent element of the major crime. Without statutory aid, it cannot be treated as a lesser included offense and cannot, therefore, be the subject of conviction on a charge of the completed crime. Here there is room for legislation. If the evidence fails to show the completed crime as charged, but shows a punishable attempt, the only thing, under present conditions, preventing conviction is the absence of an allegation stating the fact of failure. It is very difficult to see how this absence can work any real prejudice to the defendant. The attempt should be made a lesser included offense by statute. This was done in England by the statute of 1851 already mentioned. The provision (14 & 15 Vict. c. 100 s. 9) is to the effect that, if it shall appear to the jury, on the trial of any offense, that the crime charged was not completed, they may find the prisoner not guilty of the crime but guilty of an attempt to commit it. Archbold's Cr. Pl. & Pr. 23 ed. 219. Similar statutes exist in many American jurisdictions, despite Mr. Bishop's misgivings as to their constitutionality. New Crim. Law, 8 ed. I § 809. Thus, New York, for instance, permits conviction of "an attempt to commit the crime as charged or of an attempt to commit a lesser degree of the same crime." Penal Law, 1909, § 610. Indeed, a number of jurisdictions, including New York (Penal Law, 1909, § 260), California (Deering's Penal Code, 1915, § 663), Idaho (Comp. Stat., 1919, § 8606), Utah (Comp. Stat., 1917, § 8527) and North Dakota (Comp. Laws, 1913 § 10337), have gone so far as to allow conviction for attempt, at the discretion of the court, even where the evidence shows the completed crime. Whether such an enactment is advisable presents a more debatable question. effect is to modify not a mere rule of allegation but the juristic conception of attempt itself. For it manifestly implies that failure. Its |